parte order for an injunction should not be granted even after a suspension of specie payments, unless it satisfactorily appears to the judge that it is necessary to prevent fraud and injustice. The mere fact of the suspension of specie payments (when it is general), is not of itself sufficient proof of fraud or injustice to authorize such injunction. As a general rule, it is not expedient to grant any injunction against a bank, without previous notice. It was also resolved that Justice MITCHELL be requested to furnish a copy of these opinions to each of the justices of the supreme court of the other districts, with a request that they respectively communicate to him their views on the same points. Livingston v. B'k of N. Y., 5 Abb. Pr. 343 (note). 9. A judgment recovered against a corporation, after it has been dissolved, is not even prima facie evidence of a debt due from the corporation at the time of its dissolution, for the purpose of charging those who were then stockholders in the company with the amount of the judgment in a subsequent suit against them. Admissions by assignees are not evidence to prove that a debt was due at the time of the assignment, in a suit to charge the stockholders individually with the debt. To recover from stockholders on a note given after actual insolvency, it must be proved that it was given for a debt actually due. Bonaffe v. Fowler, 7 Paige, 576. 10. Money collected on an assessment of stockholders should not be repaid until all the debts are paid. The intention of the constitution and acts was, to make the stockholders liable to the full amount of their stock, for the payment of the corporate debts. Pruyn v. Van Allen, 39 Barb. 354. 11. Action under this law is not barred because of a previous judgment in an action under Revised Statutes (2 R. S., 463, §§ 39-40), by a stockholder of bank to compel the application of its assets to the payment of its debts. Diven, Rec'r Yates C. B'k v. Duncan et al., 41 Barb. 520. 12. The provisions of the Revised Statutes (2 R. S., 464-465), entitled "Of proceedings against corporations in equity," are not repealed by this act, at least as far as actions by attorney-general for people are concerned. Livingston v. B'k of N. Y., 5 Abb. Pr. 343. - therefore Revised Statutes 13. To proceedings by people, act is not applicable are in so much still in force. People v. Central B'k, 53 Barb. 420; 35 How. Pr. 434. The right of action against a bank to recover moneys on deposit does not accrue until a demand and refusal of payment has been made; and the presentation and demand of payment of the depositor's check by a wrongful holder, the payee's indorsement thereon being forged, is not such a demand as perfects the depositor's cause of action. Bank of British N. A. v. Merchants' Bank, 16 Jones & Spencer, 4. 14. In determining who the stockholders are, the court will not look into the legal title, except perhaps where there has been a fraudulent transfer to avoid liability. Adderly v. Storm et al., 6 Hill, 624; Ex parte Van Riper, 20 Wend. 614. 15. In an action brought to enforce the individual liability of a stockholder of an insolvent bank, he cannot set off against such liability its indebtedness to him. Garrison v. Howe, 17 N. Y. 464; In re Empire City Bank, 18 id. 227. 16. The liability of a stockholder is in the nature of a contract, and as such was a personal liability for which the estate of the stockholder was holden after his death. Bailey v. Hollister, 26 N. Y. 116. 17. The liability of each stockholder is precisely for his ratable proportion of the sum total of that indebtedness of the bank which is to be borne by the shareholders, whether this be its entire indebtedness of every description, or only its indebtedness upon its circulating bills and notes. After he has once paid this proportional amount to any person or persons having a legal right to demand it from him, he is fully acquitted and discharged. His liability is for his share of the total indebtedness, not for his proportion of each item of that indebtedness. Neither are the solvent shareholders, or those who can become at for collection, liable to assessment beyond the proportional amount above described, by reason of the insolvency or inaccessibility of others of the shareholders. Those who are solvent and accessible, have not the burden of paying off the whole sum which is due from all together, but only their own proportionate shares; it is the same if the bank owns shares of its own capital stock. In assessing the other shareholders, the calculation will be made upon a basis including these shares precisely as if they were held by an outside party. Making an equation according to the time-honored rule of three, the liability of each individual may be thus ascertained: as the whole capital stock is to the entire indebtedness which all the shareholders are liable to discharge, so is the total par value of all the shares to any one shareholders' proportion of the amount to be redeemed. The last figure gives the sum which the individual is liable to pay. Morse, Treatise on Banks, (2d ed.) 503; United States v. Knox, 102 U. S. 422, 26 L. ed. 216, and cases there cited. 18. The organization of a banking corporation and the subscription of the defendant to the capital stock thereof creates a legal liability on his part to pay the corporation the amount of his subscription; and that legal liability may be enforced to an extent necessary to liquidate its debts. Dayton v. Borst, 31 N. Y. 435. 19. The original articles of association relieved stockholders from all liability. The bank issued circulating notes after 1850 as before. Held, that stockholders are personally liable under the constitution and this act. In re Oliver Lee & Co.'s Bank, 21 N. Y. 9. 20. Persons to whom stock has been transferred on books as security for debt are liable as stockholders (not the borrower and pledgor), unless the debt has been paid and re-assignment made before default. It would seem that the provision charging the equitable owner is limited to cases where the registered holder is merely the nominal owner like a trustee, and has no beneficial interest. In re Empire Bank, 18 N. Y. 226. 21. A delivery of a stock certificate as collateral security for a debt with the usual power of attorney indorsed thereon, signed by the owner in blank, transfers all the owner's title subject only to claims of the corporation, though prohibited by by-law, unless made on the books of the company. But the company having no notice of the transfer are protected in payment of dividends to original owner, and allowing him to vote until transferred on its books. Smith v. Am. Coal. Co., 7 Lans. 317. 22. A person who, after having subscribed for stock of a bank, transfers his subscription with consent of bank in good faith to another, is relieved of responsibility on account of his subscription, and is not liable under this act. Cowles v. Cromwell, 25 Barb. 415. 23. The means for acquiring jurisdiction under this act over the persons of stockholders are unknown to the common law, and quite different from those re quired in actions under the Code. Personal service is not required in any case, and mere advertisement is sufficient as to all stockholders not residents of the county where principal office of banks is situated. Such a method may be justified as to a stockholder, since he would be likely to know that his bank had passed into a receiver's hands. Therefore jurisdiction can thus be acquired only over stockholders, and not over any one who does not come within the definition given in the second section of act. Diven v. Lee, 34 How. Pr. 198, 199; S. C. 36 N. Y. 302. 24. Defendant was the owner of certain shares of the capital stock of the bankers and brokers' association, a corporation organized under the act of 1867 (ch. 474), and by it made subject to the provisions of the Revised Statutes in relation to general prowers, privileges and liabilities of corporations. 1 R. S. 599, § 1 et seq. He sold said stock to B. & Co., a firm of which the president of said corporation and one of the trustees were members, and transferred his certificate by executing an assignment in blank, no name being inserted as transferee. The stock was not transferred on the books of the corporation; an indorsement was made upon the dividend book, that the dividends were to be paid to B. & Co. For four years thereafter the dividends were paid to B. & Co., as appears by the books of the association on the account of B. with the company, and on the dividend book, where it was marked as credited to them. The transaction relating to the stock was with B. alone. There was no declaration in the charter or by-laws that a transfer could only be made perfect by entry on the books. Said corporation having become insolvent, plaintiff, as the receiver, brought this action to recover an amount unpaid on said stock. Held, that the action could not be maintained, that B. & Co. took a complete and perfect title, and that the corporation could not contest its title, and that the receiver occupied no other position and had no better right than the corporation. Cutting v. Damerall, 88 N. Y. 411; reversing 23 Hun, 339. 25. It is a defense, and a stockholder may show, in his exoneration, that his name was placed on the books of the corporation without his consent; but where he actually buys stock, whether from the corporation or an individual, it is no defense that he was induced to do so through fraudulent representations, e. g., the representations of the president that it was " full-paid capital stock upon which there was no liability of the stockholders," and it makes no difference that he did not know that the representations were false until after the insolvency of the corporation. Briggs v. Cromwell, 9 Daly, 436. 26. Where a bank has no legal existence because irregularly organized, the stockholders are not liable as partners where they have not taken part in or been cognizant of the management of its business, and have not consented to any of the acts of others, except to receive certificates and dividends, and there are no articles of association and no agreement is shown to exist by which the business was carried on. The receipt of dividends, merely, is not sufficient. Merchants' Natl. Bank v. Pendleton, 29 State R. 891, 9 N. Y. Supp. 46. 27. The rule that a corporation acting in good faith and without notice of the rights of others may treat registered shareholders as the actual owners of the shares standing in their names, applies only to such transactions as are within the express or implied powers conferred upon the company or its shareholders collectively; and an assignee of shares having possession of a certificate, although holding under an unregistered transfer, is not bound by a contract between the registered shareholder and the corporation, which is not within such powers. Campbell v. Am. Zylonite Co., 122 N. Y. 455, 11 L. R. A. 596, 25 N. E. 853. 28. A person may be a holder of stock without being in the full sense of the term a stockholder; no one can be made a stockholder without his consent, express or implied. Glenn v. Garth, 133 N. Y. 18, 30 N. E. 649, 31 N. E. 344. 29. In Hirschfeld v. Kursheedt, 81 Hun, 555, 30 N. Y. Supp. 1023, it is held that section 55 of the Stock Corporation Law, chap. 688 of the Laws of 1852, must be construed in connection with section 52 of the Banking Law. Case affirmed in Hirschfeld v. Bopp, 145 N. Y. 84, 39 N. E. 817. On this subject see Hirschfeld v. Fitzgerald, 157 N. Y. 166, 46 L. R. A. 839, 51 N. E. 997, which, in part, reverses Hirschfeld v. Bopp, 27 App. Div. 180, 50 N. Y. Supp. 676. This case also discusses the rights of a creditor of an insolvent bank against the stockholders thereof, and how the creditors may proceed to establish their claims against such stockholders. 30. The provisions of section 71 of Banking Law apply to every banking corporation continuing in business after its enactment; and stockholders are liable for the bank's debts proportionable to the par value of their shares in addition to the amount invested therein, whether they become stockholders before or after the enactment; except where stock is held as collateral, or in a representative capacity, or the debt is not payable within two years, or excepted by Stock Corporation Law. Hagmayer v. Alten, 36 Misc. 59, 72 N. Y. Supp. 623. Distinguishing Close v. Noye, 147 N. Y. 597, 41 N. E. 570. 31. Stockholder of insolvent State bank is not relieved from his liability, to the extent of the par value of his stock, to a depositor for interest on unpaid balances from time of closing bank to payment of last dividend, because of a payment to depositor by various dividends of full amount of principal and contractual interest. Creditor of insolvent bank need not demand payment from bank before suing stockholder. Parker v. Adams, 38 Misc. 325, 77 N. Y. Supp. 861. 32. Section 71 controls a banking association organized under L. 1838, ch. 260; it is a moneyed corporation; such liability applies now to banks not of issue. Hirschfeld v. Bopp, 27 App. Div. 180, 50 N. Y. Supp. 676. Reversed on other grounds, 157 N. Y. 166, 46 L. R. A. 839, 51 N. E. 997. 33. An action against stockholders under this section cannot be maintained against less than all of them, if all can be made parties. When one stockholder has been released prevents the prosecution of the others in the suit. Hirschfeld v. Bopp, 39 App. Div. 613, 57 N. Y. Supp. 699. See S. C. 145 N. Y. 84. 34. Stockholder's liability is limited to par value of his stock, but when his liability is ascertained, interest runs as on an ordinary judgment. Mahoney v. Bernhard, 45 App. Div. 499, 63 N. Y. Supp. 642. 35. Section 71 is constitutional in so far as it increases or extends liabilities of stockholders of bank heretofore existing; and does not violate U. S. Const. prohibiting legislation impairing obligation of contracts. Deposits payable on demand are "debts payable within two years." Barnes v. Arnold, 62 N. E. 1093, 169 N. Y. 611. See also S. C. 45 App. Div. 314, 61 N. Y. Supp. 85; see also S. C. 23 Misc. 197, 51 N. Y. Supp. 1109. 36. A plaintiff creditor suing for himself and others under this section is not a trustee for other creditors, and may stop when his claim is settled. Hirschfeld v. Fitzgerald, 157 N. Y. 166, 46 L. R. A. 839, 51 N. E. 997. 37. As to the right to enforce liability of stockholders outside of state of incorporation, see full presentation of authorities in note to Cushing v. Perot, 34 L. R. A. 737. 38. The "good faith" of stockholder transferring his stock while the bank is solvent discussed and examined. Persons v. Gardner, 113 App. Div. 597. 39. As to action against stockholders of foreign bank, see Howarth v. Angle, 162 N. Y. 179. § 72. Limitation of liability of stockholders. No person who has in good faith, and without any intent to evade his liability as a stockholder, transferred his stock on the books of the corporation when solvent to any resident of this state of full age previous to any default in the payment of any debt or liability of the corporation, shall be subject to any personal liability on account of the nonpayment of such debt or liability of the corporation, but the transferee of any stock so transferred previous to such default shall be liable for any such debt or liability of the corporation to the extent of such stock in the same manner as if he had been the owner at the time the corporation contracted such debt or liability. (Former section 53; R. S., 1543.) See Stock Corporation Law, §§ 56-59. 1. A transfer to the bank itself will not relieve former stockholder. It must, to have that effect, be to some one who takes a personal liability, distinct from the bank. In re Reciprocity Bank, 22 N. Y. 18. 2. A transfer by a subscriber of his subscription, and the acceptance of the assignee by the bank, relieves the subscriber from all liability on account of his subscription. Though articles of association declared that no transfer should be made on which any call for an instalment for subscription was unpaid, this was merely for protection of bank, and did not prevent the bank from consenting to the substitution of one stockholder for another. A "transfer" is the act of the holder of the stock alone, a "substitution" is the joint act of the transferee, transferrer, and the bank. Cowles v. Cromwell, 25 Barb. 415. 3. Where a subscriber transfers his stock in good faith, and the company accepts a surrender of his certificate, and issues a new one to the transferee, and credits him with the stock upon its books, the transaction amounts to a consent by the company to a release of the old stockholder from liability for future calls and a substitution of the liability to the transferee. Billings v. Robinson, 94 N. Y. 415. 4. Where the transfer sufficiently appears upon the transfer book, the transferee is liable, although no formal certificate has been issued to him. It is not essential that all the prescribed forms should be complied with. Ib, citing Isham v. Buckingham, 49 N. Y. 220; Wakefield v. Fargo, 90 N. Y. 213. § 73. Powers of president and vice-president. All contracts made by any such corporation, and all notes and bills by it issued and put |